Govt files review petition on gay sex

The Indian government Friday moved the Supreme Court seeking the review of its Dec 11 verdict holding that the homosexual relationships were an offence under the country’s penal code.

“Section 377 IPC (Indian Penal Code), insofar it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our constitution,” said the government’s review petition, which also sought the hearing be held in open court.

The petition further said that the “Section 377 which criminalizes the intercourse ‘against the order of nature’ is a reflection of outdated sodomy laws of United Kingdom which were transplanted into India in 1860”.

“They do not have any legal sanctity and in any case are unlawful in view of the constitutional mandate of articles 14, 15 and 21 of the constitution,” it added.

The review petition said that the apex court had earlier held that “a statute, which was justified when enacted, could, with the passage of time, become arbitrary and unreasonable”.

This was a reference to a part of the Dec 11 judgment where the apex court had ruled that courts were not “empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need”.

Law Minister Kapil Sibal had Friday said a review petition has been filed, adding he hoped “the right to personal choices is preserved”.

The apex court had Dec 11 set aside the 2009 Delhi High Court order holding Article 377 unconstitutional.

“We hold that Section 377 does not suffer from vice of unconstitutionality and declaration made by the division bench of Delhi High Court is unsustainable,” it said, ruling on a batch of petitions challenging the high court verdict.

The July 2, 2009 verdict had held that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the constitution, but said the provision will continue to govern “non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”.

Section 377 provides for life imprisonment or jail terms up to 10 years for anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal”.

The government’s review petition also contended that the apex court holding that LGBT (lesbian, gay, bisexual, and transgender) relationship was an offence did not at all consider the central government’s position, declared by Attorney General G.E. Vahanvati, that the high court verdict did not suffer from any legal error, thus the government did not file any appeal against it.

The petition said that though the apex court judges did take note of Vahanvati’s submission in the Dec 11 verdict but they did not dwell upon it.

It said that though parliament is mandated with the task of enacting legislations, it is the executive that defends constitutionality of statutes in court, and the court could not have ignored the fact the government had made a considered decision not to challenge the high court decision, accepting the verdict that Section 377 was unconstitutional, in so far as it criminalized adult consensual sexual acts in private.

This was in reference to the apex court verdict which said even though a Law Commission report had recommended the deletion of the part of Section 377 that criminalizes LGBT relationships, but parliament did not think it proper to do so.

The review petition said that undoubtedly law making is the sole responsibility of parliament, but it was for the apex court to judge constitutional validity of a law.

“Non-amendment of law by parliament, especially a pre-constitutional law, is not a limitation on the powers of judicial review,” the review plea said, reminding the apex court, that “as the protector and guarantor of the fundamental rights of the people”, it is bound to strike down any law that violates these rights.

The plea said that the petitions challenging the high court verdict should have been dismissed at admission stage itself as they were filed by the third parties who were not there before the high court. (IANS)